Citation NR: 9637008
Decision Date: 12/30/96 Archive Date: 01/06/97
DOCKET NO. 91-20 292 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for infertility or
sterility.
2. Entitlement to service connection for a bilateral leg or
hip disorder.
3. Entitlement to an increased evaluation for endometriosis,
currently evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active service from October 1985 to December
1988.
The appeal originated with a rating decision dated in
February 1989; and the Board of Veterans' Appeals (Board)
remanded the case in November 1991, August 1994, and January
1995.
The Board also notes that, in a February 1989 rating
decision, the RO granted service connection for endometriosis
and assigned a 10 percent evaluation for said disability,
effective December 1988. The veteran subsequently appealed
that decision with regard to the evaluation assigned. In a
rating decision dated in July 1990, the RO granted a 30
percent evaluation for endometriosis, effective in December
1988; and, according to a supplemental statement of the case
issued in August 1990, the claim for entitlement to an
increased evaluation for endometriosis was substantially
granted by the July 1990 rating decision. However, because
the RO did not award the maximum available evaluation for
endometriosis, the rating decision, in which the RO granted a
30 percent evaluation, did not abrogate the pending appeal.
See AB v. Brown, 6 Vet.App. 35, 38 (1993).
Additionally, preliminary review of the record does not
reveal that the RO expressly considered referral of the case
to the Chief Benefits Director or the Director, Compensation
and Pension Service for the assignment of an extraschedular
rating under 38 C.F.R. § 3.321(b)(1) (1995). This regulation
provides that to accord justice in an exceptional case where
the schedular standards are found to be inadequate, the field
station is authorized to refer the case to the Chief Benefits
Director or the Director, Compensation and Pension Service
for assignment of an extraschedular evaluation commensurate
with the average earning capacity impairment. The governing
criteria for such an award is a finding that the case
presents such an exceptional or unusual disability picture
with such related factors as marked interference with
employment or frequent periods of hospitalization to render
impractical the application of the regular schedular
standards. The United States Court of Veterans Appeals
(Court) has held that the Board is precluded by regulation
from assigning an extraschedular rating under 38 C.F.R.
§ 3.321(b)(1) in the first instance, however, the Board is
not precluded from raising this question, and in fact is
obligated to liberally read all documents and oral testimony
of record and identify all potential theories of entitlement
to a benefit under the law and regulations. Beverly v.
Brown, No. 94-839 (U.S. Vet. App. Sept. 19, 1996); Floyd v.
Brown, 9 Vet.App. 88 (1996). The Court has further held that
the Board must address referral under 38 C.F.R. § 3.321(b)(1)
only where circumstances are presented which the Director of
the VA’s Compensation and Pension Service might consider
exceptional or unusual. Shipwash v. Brown, 8 Vet.App. 218,
227 (1995). Having reviewed the record with these mandates
in mind, the Board finds no basis for further action on this
question.
Review of the record also discloses that the veteran may wish
to file a claim for entitlement to a total disability rating
based on individual unemployability. As such claim is not
inextricably intertwined with the issues currently on appeal,
the matter is referred to the RO for appropriate action, to
include clarification as to whether the veteran wishes to
pursue such a claim.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran essentially contends that service connection is
warranted for infertility or sterility and a bilateral leg or
hip disorder. She also asserts that an evaluation higher
than 30 percent is warranted for endometriosis.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the veteran has not met the
initial burden of submitting evidence sufficient to justify a
belief by a fair and impartial individual that the claims for
entitlement to service connection for infertility or
sterility and a bilateral leg or hip disorder are well-
grounded. It is also the decision of the Board that the
record supports the claim for entitlement to an increased
evaluation for endometriosis.
FINDINGS OF FACT
1. No competent medical evidence is of record that would
establish that the veteran currently is infertile or sterile
as a result of service or any incident or event in service or
a service-connected disability.
2. No competent medical evidence is of record that would
establish that the veteran currently has a bilateral leg or
hip disorder which is causally related to service or to any
incident or event therein.
3. All relevant information necessary for an equitable
disposition of the appeal of the claim for entitlement to an
increased evaluation for endometriosis has been developed.
4. Endometriosis is productive of pelvic pain, irregular
bleeding, and bowel symptoms.
CONCLUSIONS OF LAW
1. The claim for entitlement to service connection for
infertility or sterility is not well-grounded. 38 U.S.C.A.
§ 5107 (West 1991).
2. The claim for entitlement to service connection for a
bilateral leg or hip disorder is not well-grounded.
38 U.S.C.A. § 5107.
3. The criteria for a 50 percent evaluation for
endometriosis are met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.2, 4.7, 4.10, Part 4, Diagnostic
Code 7629 (1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Initially, the Board notes that a claim for entitlement to
service connection for a particular disability requires
evidence of the existence of a current disability and evidence
that the disability resulted from a disease or injury incurred
in or aggravated during service. 38 U.S.C.A. §§ 1131 (West
1991). Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d) (1995).
Additionally, secondary service connection for a disability is
warranted when that disability is proximately due to or the
result of a service-connected disease or injury. 38 C.F.R. §
3.310(a) (1995). Secondary service connection is also
warranted for a disability when that disability is aggravated
by a service-connected disability. Allen v. Brown,
7 Vet.App. 439 (1995).
The Board also notes that a veteran is presumed to have been
in sound condition at the time of examination for entrance
into service except for defects noted when examined for
service and that clear and unmistakable evidence that the
disability manifested in service actually existed before
service will rebut the presumption of soundness. 38 U.S.C.A.
§ 1137 (West 1991). Also, a preexisting injury or disease
will be considered to have been aggravated by active service
where there is an increase in disability during such service,
unless there is a specific finding that the increase is due
to the natural progress of the disease. 38 U.S.C.A. § 1153
(West 1991); 38 C.F.R. § 3.306 (1995).
Additionally, the Board notes that the veteran must submit
evidence that her claims for entitlement to service
connection benefits are well-grounded. 38 U.S.C.A.
§ 5107(a). A well-grounded claim is one which is plausible;
that is meritorious on its own and capable of substantiation.
Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Unlike civil
actions, the Department of Veterans Affairs (VA) benefit
system requires more than just an allegation. The veteran
must submit supporting evidence that is sufficient to justify
a belief by a fair and impartial individual that the claim is
plausible. Tripak v. Derwinski, 2 Vet.App. 609, 611 (1992);
Grivois v. Brown, 6 Vet.App. 136, 139 (1994).
The three elements of a well grounded claim for service
connection benefits are: (1) evidence of a current disability
as provided by a medical diagnosis; (2) evidence of
incurrence or aggravation of a disease or injury in service
as provided by either lay or medical evidence, as the
situation dictates; and, (3) a nexus, or link, between the
inservice disease or injury and the current disability as
provided by competent medical evidence. See Caluza v. Brown,
7 Vet.App. 498, 506 (1995); 38 C.F.R. § 3.303. This means
that there must be evidence of disease or injury during
service, a current disability, and a link between the two.
Further, the evidence must be competent. That is, the
presence of a current disability requires a medical
diagnosis; and, where an opinion is used to link the current
disorder to a cause during service, a competent opinion of a
medical professional is required. See Caluza at 504; Reiber
v. Brown, 7 Vet.App. 513 (1995). Thus, in the current case,
a medical diagnosis of infertility or sterility and a medical
diagnosis of a current bilateral leg or hip disability is
required in order to establish well-grounded claims for
entitlement to service connection for such disabilities.
With regard to the claim involving infertility or sterility,
according to a service hospital summary dated from August to
September 1986, the veteran had attempted pregnancy for the
previous two-and-a-half years without success. Also, the
report of the medical board evaluation examination performed
in April 1988 shows that the veteran had primary infertility.
It was also determined by the medical board, that the
veteran’s primary infertility began in 1983, existed prior to
service, and was not permanently aggravated by service. The
service medical records also include a statement from the
veteran dated in May 1988 in which she related that she had
been trying to have a child for four years but had been
unsuccessful.
According to the report of a VA gynecological examination in
July 1993, the veteran’s infertility or relative infertility
was probably present prior to 1985 when her condition
necessitated surgery. Thus, in addition to the veteran’s own
statements in service that she had not been able to become
pregnant prior to service, there is medical evidence tending
to show that infertility existed prior to service. However,
for the reasons discussed below, it is not necessary to
determine whether infertility or sterility pre-existed
service and was aggravated by service.
Infertility refers to the diminished capacity to produce
offspring and sterility denotes the inability to produce
offspring; and the evidence of record includes a birth
certificate showing that the veteran had a child in May 1994.
Dorland’s Illustrated Medical Dictionary, 835 (27th ed.
1988). Thus, the veteran was not sterile or infertile in May
1994. Also, while the report of a VA gynecological
examination in August 1996 shows that the veteran was
attempting to become pregnant at that time, there is no
competent medical evidence that she is currently infertile or
sterile, much less, such evidence showing that she is
infertile or sterile due to service or any incident or event
therein or that any infertility or sterility is etiologically
related to a service-connected disability. In light of the
fact that the veteran did give birth to a child in 1994, the
Board finds that the claim for entitlement to infertility or
sterility is not well-grounded.
As for the claim for entitlement to service connection for a
bilateral leg or hip disorder, the service medical records
show that the veteran complained of shin splits and hip pain
on various occasions; and assessments or diagnoses included
stress reaction, probable muscle strain of the left hip, rule
out stress reaction, and bursitis in both hips. According to
a service medical record dated in April 1986, the veteran
underwent a bone scan of the lower extremities. The
impression was that there was physeal activity within the
femurs and tibias, bilaterally, and that such finding was
unusual in women the veteran’s age. The bone scan also
revealed diffusely increased activity within the proximal and
distal femurs. It was also noted that although the latter
finding might have been the result of imaging technique, the
differential would include activation of the peripheral bone
marrow, iron deficiency anemia, chronic hemolytic anemias,
and lymphomas. A service hospital summary dated in June 1987
shows that examination revealed markedly decreased range of
motion with respect to the lower extremity, but the diagnoses
were endometriosis and cervical myositis and muscles spasms,
due to a motor vehicle accident. At the medical board
evaluation examination, the veteran reported having had
clots, cramping, and swelling in the legs and “shin splits”
which apparently occurred only after long activity; and
examination included a normal clinical evaluation of the
lower extremities. However, it was noted that straight leg
raising produced pain in the hip and back, on the right less
than the left.
At a VA examination in December 1989, range of motion of the
hips was examined; however, the diagnosis was possible
degenerative arthritis, not found, and X-rays of both hips
were negative. While the claims file was not available at a
VA examination performed in July 1993, the examining
physician diagnosed history of bursitis of the hips with some
loss of motion and history of shin splits. At a March 1995
VA joints examination, the diagnoses were history of bursitis
of the hips with limitation of motion, history of shin splits
with pain in the anterior of the forelegs, and history of
bunions with foot pain; and X-rays of the hips were normal.
The diagnoses at a VA examination in August 1996 included
history of bursitis of the hips and some limitation of motion
on flexion but no hip disability at that time. The examiner
also diagnosed history of shin splits, but, significantly,
the examiner noted that no activity was found at that time.
Thus, while the veteran has a history of a bilateral leg or
hip disability, she has submitted no medical evidence tending
to show that she currently has either disability; and VA
physicians who examined the veteran after service did not
diagnose any bilateral leg or hip disability at the time of
their examinations.
Where the veteran has not met the burden of submitting
evidence sufficient to justify a belief by a fair and
impartial individual that her claim for service connection
benefits is well-grounded, the VA has no duty to assist her
in developing facts pertinent to such claim, to include
affording her any additional examinations. Additionally, the
veteran has not related that any physician or other qualified
health care professional has diagnosed a bilateral leg or hip
disorder since service or related any such disorder to an
event or complaints in service. Under the circumstances, the
VA has no duty to assist the veteran in developing well-
grounded claims for entitlement to service connection for
infertility or sterility and a bilateral leg or hip disorder
or to obtain any private medical records. Epps v. Brown, No.
93-438 (U.S. Vet. App. Aug. 27, 1996); Robinette v. Brown,
8 Vet.App. 69 (1995). Further, if the veteran does not
submit a well-grounded claim, the appeal of the claim must
fail. 38 U.S.C.A. § 5107(a); Murphy, 1 Vet.App. at 81.
The governing law, 38 U.S.C.A. § 5107(a),
[R]eflects a policy that implausible
claims should not consume the limited
resources of the VA and force into even
greater backlog and delay those claims
which -- as well grounded -- require
adjudication. . . . Attentiveness to this
threshold issue is, by law, not only for
the Board but for the initial
adjudicators, for it is their duty to
avoid adjudicating the implausible claims
at the expense of delaying well grounded
ones.
Grivois v. Brown, 6 Vet.App. 136, 139 (1994).
The Board also notes that the RO’s failure to find the claims
for entitlement to service connection for infertility or
sterility and a bilateral leg or hip disorder not well-
grounded constitutes harmless error. Edenfield v. Brown, 8
Vet.App. 384 (1995).
Finally, with regard to the reference to Dorland’s
Illustrated Medical Dictionary, the Board finds that because
the claim for entitlement to service connection for
infertility or sterility is not well-grounded, the veteran is
not entitled to receive an adjudication of her claim on the
merits and any violation of Thurber v. Brown, 5 Vet.App. 119
(1993), is not prejudicial to her. Dean v. Brown, 8
Vet.App. 449 (1995).
II. Increased Rating
The Board also finds that the claim for entitlement to an
increased evaluation for endometriosis is well-grounded and
that the VA has complied with the duty to assist in
developing the facts pertinent to said claim. Murphy,
1 Vet.App. 78; 38 U.S.C.A. § 5107. The Board notes that the
veteran submitted a VA Form 21-4142 (Authorization for
Release of Information) dated in July 1992 for treatment
records from J. Frederick Cardwell, M.D., a private
physician, and that it does not appear that the RO attempted
to obtain records from that physician. However, in a letter
dated in March 1989, the veteran indicated that she was
treated by Dr. Cardwell while she was in service, and the
service medical records include a letter from Dr. Cardwell
dated in January 1988. As there is no indication that
treatment records from Dr. Cardwell would provide evidence
pertinent to the current claim for entitlement to an
increased evaluation for endometriosis, especially in light
of the many VA gynecological examinations performed since
service, the Board finds that remanding this case another
time would serve no useful purpose.
Disability ratings are based on schedular requirements which
reflect the average impairment of earning capacity occasioned
by the state of a disorder. 38 U.S.C.A. § 1155. Separate
rating codes identify the various disabilities. 38 C.F.R.
Part 4. In determining the level of impairment, the
disability must be considered in the context of the whole
recorded history, including service medical records. 38
C.F.R. § 4.2. An evaluation of the level of disability
present must also include consideration of the functional
impairment of the veteran's ability to engage in ordinary
activities, including employment, and the effect of pain on
the functional abilities. 38 C.F.R. § 4.10. Also, where
there is a question as to which of two evaluations shall be
applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7.
The service medical records show that the veteran was
hospitalized in November 1986 and from August to September
1987. According to the 1987 service hospital records, the
veteran underwent a pelvic laparotomy in 1983, a pelvic
laparotomy in 1985 for right ovarian cyst, and a diagnostic
laparotomy in September 1986 with lysis of adhesions during
which endometriosis was diagnosed. Those records also show
that a pelvic laparotomy in November 1986 revealed adhesions
of the right ovary and right side of the uterine fundus, but
otherwise, normal findings. The November 1986 hospital
records show that the veteran had mild rectal spasms and
constipation in her post-operative course. Also, a
laparotomy performed in August 1987 revealed pelvic
inflammatory disease and “sclerocystic ovary syndrome.”
However, the service medical records do not show that any of
the laparoscopies revealed lesions involving the bowel or
bladder.
As noted above, the veteran’s endometriosis is currently
evaluated as 30 percent disabling under Diagnostic Code 7629
of the VA Schedule of Rating Disabilities. 38 C.F.R. Part 4.
Under the provisions of Diagnostic Code 7629, a 30 percent
evaluation is warranted where there is pelvic pain or heavy
or irregular bleeding not controlled by treatment; and a 50
percent evaluation is warranted where there are lesions
involving the bowel or bladder confirmed by laparoscopy,
pelvic pain or heavy or irregular bleeding not controlled by
treatment, and bowel or bladder symptoms. 38 C.F.R. Part 4.
At a VA gastroenterology and rheumatology examination in
December 1989, the veteran complained of no recent diarrhea,
melena, red rectal bleeding, or bowel habit change; but she
did report having pain in her left lower quadrant An upper
gastrointestinal and small bowel series revealed no
abnormalities, and a colon air contrast revealed a small
polyp in the region of the hepatic flexure. At a VA
gynecological examination in December 1989, the veteran
complained of chronic pelvic pain. She also reported that
her periods were regular and denied urine frequency or
burning; and pelvic examination revealed no active lesions.
At another VA gynecological examination in June 1990, the
veteran continued to complain of fairly constant pelvic pain.
At a July 1993 VA gynecological examination, the veteran also
complained of pelvic pain. She underwent another VA
gynecological examination in March 1995, at which she related
having pelvic pain and fecal incontinence. According to the
report of that examination, the veteran’s periods were
irregular, occurring every three to four months, and she was
not taking medication for endometriosis. Rectal examination
was deferred. At an August 1996 VA gynecological
examination, the veteran complained of a bowel problem and
related that she would “lose[] control of stool.” According
to that examination report, she did not take any medication
for endometriosis prior to her pregnancy, took an injection
in 1995, and was not taking any medication for endometriosis
at the time of the August 1996 examination.
Therefore, although the medical evidence, alone, does not
support a finding that the veteran has pelvic pain or heavy
or irregular bleeding not controlled by treatment, as the
most recent medical evidence shows that she was not taking
any medication to treat endometriosis, bowel or bladder
symptoms, and lesions involving the bowel or bladder
confirmed by laparoscopy; she does have pelvic pain,
irregular bleeding and bowel symptoms. Thus, a case could be
made that the evidence is in equipoise as to whether there is
a reasonable basis for concluding that the criteria for a 50
percent evaluation more closely reflect the disability
picture presented by the veteran’s endometriosis than the
criteria contemplated for a 30 percent evaluation.
Furthermore, to find that an increased evaluation is not
warranted based on the evidence currently of record would not
withstand scrutiny by the Court and remanding this case a
fourth time would not be in the veteran’s best interests.
The Board also notes that a VA physician in January 1992
noted that the veteran should probably entertain the idea of
a laparoscopy for diagnostic and treatment purposes; however,
the Board finds that such procedure is invasive. Therefore,
resolving doubt in the veteran's favor, the Board finds that
the criteria for an increased evaluation for endometriosis
are met, and a 50 percent evaluation for that disability is
warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7, Part 4,
Diagnostic Code 7629. The Board also notes that the
schedular criteria for evaluating the severity of
endometriosis do not provide for an evaluation in excess of
50 percent.
ORDER
The appeal of the claims for entitlement to service
connection for infertility or sterility and a bilateral leg
or hip disorder is denied.
A 50 percent evaluation for endometriosis is granted, subject
to the provisions governing the award of monetary benefits.
JEFF MARTIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
- 2 -